ORDER :

These writ petitions are filed challenging the order passed on interlocutory application filed by the applicant/plaintiff No.3 under Section 65 of the Indian Evidence Act, 1872. The plaintiff/applicant after leading his evidence has filed an application by producing the xerox copy of an unregistered partition deed dated 19.06.1972 and sought for marking of the said document as a secondary evidence.

2. It is the case of the plaintiff that there was a memorandum of partition entered into between the parties on 19.06.1972 and by virtue of the same he produced the said document on the allegation that the original was retained by defendant No.1 at the time of partition and in spite of issuance of notice to him he has not produced the original partition document same before the Court. Therefore, in order to prove the plea taken up by the plaintiff he sought for production of said document as a secondary evidence and he has stated that he has only got xerox copy of the said document.

3. This application came to be contested by the other side and ultimately the trial Court has come to the conclusion that in the evidence of PW.1 he has not properly explained as to how he came into possession of the said document and also in the application and affidavit, he has not stated that, the original of the said document was retained by defendant No.1 and a copy of the said document was given to the plaintiff so as to allow the plaintiff to lead such secondary evidence. On the basis of the some contradictory statement made by PW1 in his evidence on that ground the trial Court has rejected such application.

4. After hearing both the parties, I have carefully perused the plaint averments. The learned counsel for the petitioners has brought to the notice of this Court that the plaintiff has categorically stated in the plaint that there was a partition between the parties and to evidence the factum of partition a memorandum of partition was reduced into writing by one Mallappa on 19.06.1972 in the presence of his three sons and also in the presence of some respectable persons in the village and plaintiff No.1 and the father of plaintiff Nos.2 and 3 signed the memorandum of partition after understanding the contents of the same.

5. He has also categorically stated that, as to who are all the persons present at that particular point of time etc. In support of the same it is not in dispute that a notice was issued to defendant No.1 to produce the original of the said partition deed. If at all he has got the original with him. For that notice defendant No.1 has stated that he is not having any such document with him. On the other-side he denies the existence of the said document itself.

6. It is the fundamental basic principle of law that once a party has pleaded in his pleading and also stated about the existence of a document, in such an eventuality an opportunity should be given to him to prove those pleadings in accordance with law. Secondary evidence can be lead by the parties under certain circumstances, if they say that the original is not with them and the original is with the opposite party, if they plead the same in the application and consequently if a notice is issued to otherside and if the other side denies the existence of such document itself or if he does not produce the said document then in such an eventuality to prove the existence of the document and also to prove the said document that was actually entered into between the parties an opportunity should be given to the party by leading secondary evidence. The plaintiff has lead his evidence as PW.1, there are some contradictory versions in the evidence. Though he has stated that it is a registered document entered into between the parties and that he has not obtained the document from defendant No.1 on that time etc.

7. Be that as it may, that the source of the possession of the document with the plaintiff need not be gone into at this stage because it is the suit for declaration a